On February 21, 2018, a federal district court issued an injunction prohibiting the Virginia Department of Corrections (DOC) from reverting conditions of confinement on death row to those that existed when a lawsuit challenging those conditions was filed four years earlier. The DOC had improved conditions on death row in 2015, to the extent they were no longer unconstitutional. The court also held that its injunction did not violate the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626.

The plaintiffs in the suit, prisoners on Virginia’s death row, filed a federal civil rights complaint in November 2014 alleging the conditions of their confinement violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Those conditions included 23 hours a day alone in 71-square-foot cells; no contact visits; no congregate meals; no congregate recreation, religious, educational or social programming; only three showers a week and just five hours of outdoor recreation per week in separate, isolated cages.

The district court found that those conditions of confinement, amounting to physical isolation, caused the plaintiffs psychological harm in violation of the Eighth Amendment. It also held the defendants knew about the potential for such harm and were deliberately indifferent to it.

In 2015, the DOC revised its death row rules and regulations to permit limited contact visits and indoor congregation in groups of up to four prisoners in a day room equipped with a television, table with seating, a bench, various games and a JPay kiosk that facilitated the purchase of books and movies and the sending of secure emails.

Outdoor recreation was increased to 90 minutes, five days per week, daily showers were allowed and a limited number of jobs were made available to death row prisoners. The DOC constructed two covered outdoor recreation areas, equipped with stationary exercise equipment and a basketball court, where groups of up to four death row prisoners are allowed to congregate.

After those changes were made, at a cost of almost $2 million, the court granted the defendants’ motion for summary judgment and dismissed the case as moot. The plaintiffs appealed and the Fourth Circuit agreed in a March 24, 2017 ruling that under the doctrine of voluntary cessation, the lawsuit was not moot.

“We do not question the Corrections Department’s penological rationale for refusing to guarantee that it will not revert to the challenged policies if conditions so require,” the appellate court wrote. “But given that the Corrections Department (1) ‘retains the authority and capacity’ to return to the challenged policies ... (2) refuses to ‘promise[] not to resume the prior practice,’ ... and (3) has suggested circumstances may require re-imposing the challenged policies, Defendants cannot meet their ‘formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’” [citations omitted]. See: Porter v. Clarke, 852 F.3d 358 (4th Cir. 2017).

On remand, both parties moved for summary judgment. The plaintiffs sought an injunction to prohibit prison officials from returning to pre-2015 conditions of confinement on death row; they were supported by amicus briefs from the ACLU Foundation of Virginia and the Rutherford Institute. The district court found the defendants could revert to those conditions simply by changing DOC policies, and had refused to assure the court they would not do so. Thus, there was a danger of recurrent violations.

The court noted that the PLRA termination provision’s “ongoing violation” requirement applies to the termination of relief already granted, and did not preclude an initial grant of relief when there is no ongoing constitutional violation. However, the injunction would only remain in effect for two years, absent a future finding of ongoing violations. Therefore, the district court granted the plaintiffs’ motion for summary judgment, denied the DOC’s motion and enjoined prison officials from returning to pre-2015 conditions on death row. See: Porter v. Clarke, U.S.D.C. (E.D. Vir.), Case No. l:14-cv-01588-LMB-IDD; 2018 U.S. Dist. LEXIS 28551.

The ACLU of Virginia lauded the ruling, saying in a statement that “temporary relief of harsh, inhumane conditions in a state prison is not enough to cast aside a legal claim of unconstitutional treatment.”

Additional sources: Washington Post, www.whsv.com

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